2004-2005-2006 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 (Attorney-General) A Bill for an Act to give effect to the Convention on the Marking of Plastic Explosives for the Purpose of Detection, and for other purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 2 Schedule 1--Amendment of the Criminal Code Act 1995 3 Schedule 2--Amendment of the Customs Act 1901 21 Schedule 3--Consequential amendments 24 Australian Federal Police Act 1979 24 Australian Security Intelligence Organisation Act 1979 24 Crimes Act 1914 24 Foreign Evidence Act 1994 24 Surveillance Devices Act 2004 24 Telecommunications (Interception) Act 1979 25 i Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 [Page Break] 1 the Marking of Plastic Explosives for the Purpose 2 of Detection, and for other purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the Law and Justice Legislation 6 Amendment (Marking of Plastic Explosives) Act 2006. 7 2 Commencement 8 (1) Each provision of this Act specified in column 1 of the table 9 commences, or is taken to have commenced, in accordance with 10 column 2 of the table. Any other statement in column 2 has effect 11 according to its terms. 12 13 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedules 1 to The later of: 3 (a) the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent; and (b) the day on which the Convention on the Marking of Plastic Explosives for the Purpose of Detection, done at Montreal on 1 March 1991, comes into force for Australia. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. The Minister must announce by notice in the Gazette the day on which the Convention comes into force for Australia. Note: This table relates only to the provisions of this Act as originally 1 passed by both Houses of the Parliament and assented to. It will not be 2 expanded to deal with provisions inserted in this Act after assent. 3 (2) Column 3 of the table contains additional information that is not 4 part of this Act. Information in this column may be added to or 5 edited in any published version of this Act. 6 3 Schedule(s) 7 Each Act that is specified in a Schedule to this Act is amended or 8 repealed as set out in the applicable items in the Schedule 9 concerned, and any other item in a Schedule to this Act has effect 10 according to its terms. 11 2 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 [Page Break] 1 Schedule 1--Amendment of the Criminal Code 2 Act 1995 3 4 1 Division 72 of the Criminal Code (heading) 5 Repeal the heading, substitute: 6 Division 72--Explosives and lethal devices 7 2 Before section 72.1 of the Criminal Code 8 Insert: 9 Subdivision A--International terrorist activities using explosive 10 or lethal devices 11 3 Sections 72.1 and 72.2 of the Criminal Code 12 Omit "Division", substitute "Subdivision". 13 4 Subsection 72.4(1) of the Criminal Code 14 Omit "Division", substitute "Subdivision". 15 5 Sections 72.5 and 72.6 of the Criminal Code 16 Omit "Division", substitute "Subdivision". 17 6 Subsections 72.7(1), (2), (3) and (4) of the Criminal Code 18 Omit "Division", substitute "Subdivision". 19 Note: The heading to section 72.7 of the Criminal Code is altered by omitting "Division" and 20 substituting "Subdivision". 21 7 Sections 72.9 and 72.10 of the Criminal Code 22 Omit "Division", substitute "Subdivision". 23 8 At the end of Division 72 of the Criminal Code 24 Add: 25 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 3 [Page Break] Subdivision B--Plastic explosives 1 72.11 Purpose 2 The purpose of this Subdivision is to create offences relating to 3 plastic explosives and give effect to the Convention on the 4 Marking of Plastic Explosives. 5 Note: The Convention requires the introduction of detection agents into 6 plastic explosives so as to render the explosives detectable by vapour 7 detection means. This is known as the marking of the explosives. 8 72.12 Trafficking in unmarked plastic explosives etc. 9 (1) A person commits an offence if: 10 (a) the person traffics in a substance; and 11 (b) the substance is a plastic explosive; and 12 (c) the plastic explosive breaches a marking requirement; and 13 (d) the trafficking is not authorised under section 72.18, 72.19, 14 72.20, 72.21, 72.22 or 72.23. 15 Penalty: Imprisonment for 10 years. 16 (2) The fault element for paragraph (1)(b) is recklessness. 17 (3) Strict liability applies to paragraphs (1)(c) and (d). 18 Note 1: For the marking requirements, see section 72.33. 19 Note 2: For defences, see section 72.16. 20 72.13 Importing or exporting unmarked plastic explosives etc. 21 (1) A person commits an offence if: 22 (a) the person imports or exports a substance; and 23 (b) the substance is a plastic explosive; and 24 (c) the plastic explosive breaches a marking requirement; and 25 (d) the import or export is not authorised under section 72.18, 26 72.19, 72.20, 72.22 or 72.23. 27 Penalty: Imprisonment for 10 years. 28 (2) The fault element for paragraph (1)(b) is recklessness. 29 (3) Strict liability applies to paragraphs (1)(c) and (d). 30 4 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 [Page Break] Note 1: For the marking requirements, see section 72.33. 1 Note 2: For defences, see section 72.16. 2 72.14 Manufacturing unmarked plastic explosives etc. 3 (1) A person commits an offence if: 4 (a) the person: 5 (i) engages in the manufacture of a substance; or 6 (ii) exercises control or direction over the manufacture of a 7 substance; and 8 (b) the substance is a plastic explosive; and 9 (c) the plastic explosive breaches the first marking requirement; 10 and 11 (d) the manufacture is not authorised under section 72.18 or 12 72.21. 13 Penalty: Imprisonment for 10 years. 14 (2) The fault element for paragraph (1)(b) is recklessness. 15 (3) Strict liability applies to paragraphs (1)(c) and (d). 16 Note 1: For the marking requirements, see section 72.33. 17 Note 2: For defences, see section 72.16. 18 72.15 Possessing unmarked plastic explosives etc. 19 (1) A person commits an offence if: 20 (a) the person possesses a substance; and 21 (b) the substance is a plastic explosive; and 22 (c) the plastic explosive breaches a marking requirement; and 23 (d) the possession is not authorised under section 72.18, 72.19, 24 72.20, 72.21, 72.22 or 72.23. 25 Penalty: Imprisonment for 2 years. 26 (2) The fault element for paragraph (1)(b) is recklessness. 27 (3) Strict liability applies to paragraphs (1)(c) and (d). 28 Note 1: For the marking requirements, see section 72.33. 29 Note 2: For defences, see section 72.16. 30 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 5 [Page Break] 72.16 Defences 1 (1) If: 2 (a) a person is charged with an offence against section 72.12, 3 72.13, 72.14 or 72.15; and 4 (b) the prosecution alleges that the plastic explosive breached a 5 particular marking requirement; 6 it is a defence if the defendant proves that he or she had no 7 reasonable grounds for suspecting that the plastic explosive 8 breached that marking requirement. 9 Note 1: A defendant bears a legal burden in relation to the matter in 10 subsection (1) (see section 13.4). 11 Note 2: For the marking requirements, see section 72.33. 12 (2) If: 13 (a) a person is charged with an offence against section 72.12, 14 72.13 or 72.15; and 15 (b) the prosecution alleges that the plastic explosive breached the 16 second marking requirement; 17 it is a defence if the defendant proves that, at the time of the 18 alleged offence: 19 (c) the plastic explosive contained a detection agent; and 20 (d) the concentration of the detection agent in the plastic 21 explosive was not less than the minimum manufacture 22 concentration for the detection agent; and 23 (e) the detection agent was homogenously distributed throughout 24 the plastic explosive. 25 Note 1: A defendant bears a legal burden in relation to the matter in 26 subsection (2) (see section 13.4). 27 Note 2: For the marking requirements, see section 72.33. 28 Note 3: For minimum manufacture concentration, see section 72.34. 29 72.17 Packaging requirements for plastic explosives 30 (1) A person commits an offence if: 31 (a) the person manufactures a substance; and 32 (b) the substance is a plastic explosive; and 33 (c) within 24 hours after the manufacture of the plastic 34 explosive, the person does not cause the plastic explosive to 35 be contained, enclosed or packaged in a wrapper with: 36 6 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 [Page Break] (i) the expression "PLASTIC EXPLOSIVE" (in upper-case 1 lettering); and 2 (ii) the date of manufacture of the plastic explosive; and 3 (iii) if the plastic explosive is of a prescribed type--that 4 type; and 5 (iv) if the plastic explosive contains a detection agent for the 6 purpose of meeting the first marking requirement--the 7 name of the detection agent; and 8 (v) if the plastic explosive contains a detection agent for the 9 purpose of meeting the first marking requirement--the 10 concentration of the detection agent in the plastic 11 explosive at the time of manufacture, expressed as a 12 percentage by mass; 13 legibly displayed on the outer surface of the wrapper. 14 Penalty: Imprisonment for 2 years. 15 (2) The fault element for paragraphs (1)(b) and (c) is recklessness. 16 72.18 Authorisation for research etc. 17 Authorisation 18 (1) A responsible Minister may, by writing, authorise: 19 (a) the trafficking in; or 20 (b) the import, export, manufacture or possession of; 21 an unmarked plastic explosive. 22 (2) A responsible Minister must not give an authorisation under 23 subsection (1) in relation to an unmarked plastic explosive unless 24 the responsible Minister is satisfied that: 25 (a) the plastic explosive is for use exclusively for one or more of 26 the following: 27 (i) research, development or testing of new or modified 28 explosives; 29 (ii) development or testing of explosives detection 30 equipment; 31 (iii) training in explosives detection; 32 (iv) forensic science; or 33 (b) both: 34 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 7 [Page Break] (i) the plastic explosive is an integral part of an explosive 1 device that was manufactured exclusively for defence 2 purposes; and 3 (ii) the explosive device is for use exclusively for defence 4 purposes; or 5 (c) the plastic explosive will, within 3 years after the 6 commencement of this section, become an integral part of an 7 explosive device manufactured exclusively for defence 8 purposes. 9 (3) An authorisation under subsection (1) must specify the grounds on 10 which it was given. 11 Conditions and restrictions 12 (4) An authorisation under subsection (1) is subject to such conditions 13 and restrictions as are specified in the authorisation. 14 (5) A responsible Minister must not give an authorisation under 15 subsection (1) in relation to an unmarked plastic explosive on 16 grounds covered by paragraph (2)(a) unless the authorisation is 17 subject to a condition imposing a limit as to the quantity of the 18 plastic explosive. 19 Criteria 20 (6) In exercising a power conferred by this section in relation to: 21 (a) the trafficking in; or 22 (b) the import, export, manufacture or possession of; 23 an unmarked plastic explosive, a responsible Minister must have 24 regard to: 25 (c) the Convention on the Marking of Plastic Explosives; and 26 (d) whether the trafficking, import, export, manufacture or 27 possession is reasonable; and 28 (e) such other matters (if any) as the responsible Minister 29 considers relevant. 30 72.19 Authorisation for defence and police purposes--15 year limit 31 Authorisation 32 (1) A responsible Minister may, by writing, authorise: 33 8 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 [Page Break] (a) the trafficking in; or 1 (b) the import, export or possession of; 2 an unmarked plastic explosive that was: 3 (c) manufactured before the commencement of this section; or 4 (d) manufactured after the commencement of this section in 5 accordance with an authorisation given under subsection 6 72.21(2). 7 (2) A responsible Minister must not give an authorisation under 8 subsection (1) in relation to an unmarked plastic explosive unless 9 the responsible Minister is satisfied that the plastic explosive is 10 exclusively for use in connection with: 11 (a) the operation of the Australian Defence Force; or 12 (b) the operation in Australia of a visiting force (within the 13 meaning of the Defence (Visiting Forces) Act 1963); or 14 (c) the operation of: 15 (i) the Australian Federal Police; or 16 (ii) the police force or police service of a State or Territory. 17 Conditions and restrictions 18 (3) An authorisation under subsection (1) is subject to such conditions 19 and restrictions as are specified in the authorisation. 20 Criteria 21 (4) In exercising a power conferred by this section in relation to: 22 (a) the trafficking in; or 23 (b) the import, export or possession of; 24 an unmarked plastic explosive, a responsible Minister must have 25 regard to: 26 (c) the Convention on the Marking of Plastic Explosives; and 27 (d) whether the trafficking, import, export or possession is 28 reasonable; and 29 (e) such other matters (if any) as the responsible Minister 30 considers relevant. 31 Sunset 32 (5) This section ceases to have effect at the end of 15 years after its 33 commencement. 34 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 9 [Page Break] 72.20 Authorisation for existing stocks--3 year limit 1 Authorisation 2 (1) A responsible Minister may, by writing, authorise: 3 (a) the trafficking in; or 4 (b) the import, export or possession of; 5 an unmarked plastic explosive that was manufactured before the 6 commencement of this section. 7 Conditions and restrictions 8 (2) An authorisation under subsection (1) is subject to such conditions 9 and restrictions as are specified in the authorisation. 10 (3) A responsible Minister must not give an authorisation under 11 subsection (1) in relation to an unmarked plastic explosive unless 12 the authorisation is subject to a condition that, within 3 years after 13 the commencement of this section: 14 (a) the plastic explosive will not exist; or 15 (b) the plastic explosive will be made permanently ineffective. 16 Criteria 17 (4) In exercising a power conferred by this section in relation to: 18 (a) the trafficking in; or 19 (b) the import, export or possession of; 20 an unmarked plastic explosive, a responsible Minister must have 21 regard to: 22 (c) the Convention on the Marking of Plastic Explosives; and 23 (d) whether the trafficking, import, export or possession is 24 reasonable; and 25 (e) such other matters (if any) as the responsible Minister 26 considers relevant. 27 10 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 [Page Break] 72.21 Authorisation of manufacturers--6 month transitional period 1 Object 2 (1) The object of this section is to allow manufacturers a 6 month 3 transitional period for compliance with sections 72.12, 72.14 and 4 72.15. 5 Authorisation 6 (2) A responsible Minister may, by writing, authorise: 7 (a) the manufacture of an unmarked plastic explosive after the 8 commencement of this section; or 9 (b) the trafficking in an unmarked plastic explosive 10 manufactured after the commencement of this section; or 11 (c) the possession of an unmarked plastic explosive 12 manufactured after the commencement of this section. 13 (3) A responsible Minister must not give an authorisation under 14 subsection (2) in relation to an unmarked plastic explosive unless 15 the responsible Minister is satisfied that the plastic explosive is 16 exclusively for use in connection with: 17 (a) the operation of the Australian Defence Force; or 18 (b) the operation in Australia of a visiting force (within the 19 meaning of the Defence (Visiting Forces) Act 1963); or 20 (c) the operation of: 21 (i) the Australian Federal Police; or 22 (ii) the police force or police service of a State or Territory. 23 Conditions and restrictions 24 (4) An authorisation under subsection (2) is subject to such conditions 25 and restrictions as are specified in the authorisation. 26 Sunset 27 (5) This section ceases to have effect at the end of 6 months after its 28 commencement. 29 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 11 [Page Break] 72.22 Authorisation for overseas defence purposes--7 day limit 1 (1) A member of the Australian Defence Force is authorised to 2 possess, import or traffic in an unmarked plastic explosive if: 3 (a) the plastic explosive was obtained in the course of the 4 operation outside Australia of the Australian Defence Force; 5 and 6 (b) the member believes on reasonable grounds that there is 7 insufficient time to obtain an authorisation under this 8 Subdivision because of: 9 (i) an emergency; or 10 (ii) any other sudden or unexpected circumstances. 11 (2) An authorisation under subsection (1) ceases to have effect at the 12 end of the seventh day after the day on which the plastic explosive 13 was obtained. 14 72.23 Authorisation for overseas Australian Federal Police 15 purposes--7 day limit 16 (1) A member of the Australian Federal Police is authorised to 17 possess, import or traffic in an unmarked plastic explosive if: 18 (a) the plastic explosive was obtained in the course of the 19 operation outside Australia of the Australian Federal Police; 20 and 21 (b) the member believes on reasonable grounds that there is 22 insufficient time to obtain an authorisation under this 23 Subdivision because of: 24 (i) an emergency; or 25 (ii) any other sudden or unexpected circumstances. 26 (2) An authorisation under subsection (1) ceases to have effect at the 27 end of the seventh day after the day on which the plastic explosive 28 was obtained. 29 72.24 Forfeited plastic explosives 30 (1) If a court: 31 (a) convicts a person of an offence against this Subdivision in 32 relation to a plastic explosive; or 33 12 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 [Page Break] (b) makes an order under section 19B of the Crimes Act 1914 in 1 respect of a person charged with an offence against this 2 Subdivision in relation to a plastic explosive; 3 the court may order the forfeiture to the Commonwealth of the 4 plastic explosive. 5 (2) A plastic explosive forfeited to the Commonwealth under 6 subsection (1) becomes the property of the Commonwealth. 7 (3) A plastic explosive forfeited to the Commonwealth under 8 subsection (1) is to be dealt with in such manner as a responsible 9 Minister directs. 10 (4) Without limiting subsection (3), a responsible Minister may direct 11 that a plastic explosive forfeited to the Commonwealth under 12 subsection (1) be: 13 (a) destroyed; or 14 (b) used exclusively for one or more of the purposes covered by 15 paragraph 72.18(2)(a). 16 Note 1: See also section 10.5 (lawful authority). 17 Note 2: See also section 229 of the Customs Act 1901 (forfeiture of goods that 18 have been unlawfully imported or exported). 19 72.25 Surrendered plastic explosives 20 (1) A person may surrender a plastic explosive to the Commonwealth 21 at a place, and in a manner, prescribed for the purposes of this 22 subsection. 23 (2) A plastic explosive surrendered to the Commonwealth under 24 subsection (1) becomes the property of the Commonwealth. 25 (3) A plastic explosive surrendered to the Commonwealth under 26 subsection (1) is to be dealt with in such manner as a responsible 27 Minister directs. 28 (4) Without limiting subsection (3), a responsible Minister may direct 29 that a plastic explosive surrendered to the Commonwealth under 30 subsection (1) be: 31 (a) destroyed; or 32 (b) used exclusively for one or more of the purposes covered by 33 paragraph 72.18(2)(a). 34 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 13 [Page Break] Note: See also section 10.5 (lawful authority). 1 72.26 Destruction of plastic explosives obtained overseas for defence 2 purposes 3 A member of the Australian Defence Force may destroy an 4 unmarked plastic explosive if the plastic explosive was obtained in 5 the course of the operation outside Australia of the Australian 6 Defence Force. 7 72.27 Destruction of plastic explosives obtained overseas for 8 Australian Federal Police purposes 9 A member of the Australian Federal Police may destroy an 10 unmarked plastic explosive if the plastic explosive was obtained in 11 the course of the operation outside Australia of the Australian 12 Federal Police. 13 72.28 Delegation by Minister 14 (1) The Minister may, by writing, delegate to: 15 (a) the Secretary of the Department; or 16 (b) an SES employee, or an acting SES employee, in the 17 Department, where the employee occupies or acts in a 18 position with a classification of Senior Executive Band 3; 19 all or any of the Minister's powers under sections 72.18, 72.19, 20 72.20, 72.21, 72.24 and 72.25. 21 (2) A delegate is, in the exercise of a power delegated under 22 subsection (1), subject to the written directions of the Minister. 23 72.29 Delegation by Minister for Defence 24 (1) The Minister for Defence may, by writing, delegate to: 25 (a) an SES employee, or an acting SES employee, in the 26 Department of Defence, where the employee occupies or acts 27 in a position with a classification of Senior Executive Band 28 3; or 29 (b) an officer of the Australian Navy who holds the rank of 30 Vice-Admiral or a higher rank; or 31 (c) an officer of the Australian Army who holds the rank of 32 Lieutenant-General or a higher rank; or 33 14 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 [Page Break] (d) an officer of the Australian Air Force who holds the rank of 1 Air Marshal or a higher rank; or 2 (e) an officer of the Australian Defence Force who is on 3 deployment as the Commander of an Australian Task Force, 4 contingent or force element that is operating outside 5 Australia; 6 all or any of the powers of the Minister for Defence under 7 sections 72.18, 72.19, 72.20, 72.21, 72.24 and 72.25. 8 (2) A delegate must not exercise a power delegated under 9 subsection (1) unless the exercise of the power relates to: 10 (a) the operation of the Australian Defence Force; or 11 (b) the operation in Australia of a visiting force (within the 12 meaning of the Defence (Visiting Forces) Act 1963); or 13 (c) the operation outside Australia of a person who, under a 14 contract, performs services for the Australian Defence Force. 15 (3) A delegate is, in the exercise of a power delegated under 16 subsection (1), subject to the written directions of the Minister for 17 Defence. 18 72.30 Review by Administrative Appeals Tribunal of authorisation 19 decisions 20 (1) An application may be made to the Administrative Appeals 21 Tribunal for review of a decision refusing to give an authorisation 22 under subsection 72.18(1), 72.19(1), 72.20(1) or 72.21(2). 23 (2) An application may be made to the Administrative Appeals 24 Tribunal for review of a decision to specify a condition or 25 restriction in an authorisation under subsection 72.18(1), 72.19(1), 26 72.20(1) or 72.21(2), but such an application may only be made by 27 a person to whom the authorisation applies. 28 72.31 Geographical jurisdiction 29 Section 15.2 (extended geographical jurisdiction--category B) 30 applies to each offence against this Subdivision. 31 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 15 [Page Break] 72.32 Saving of other laws 1 This Subdivision is not intended to exclude or limit the operation 2 of any other law of the Commonwealth or of a State or Territory. 3 72.33 Marking requirements 4 (1) This section sets out the 2 marking requirements for a plastic 5 explosive. 6 Concentration of detection agent at time of manufacture 7 (2) The first marking requirement is that, at the time of the 8 manufacture of the plastic explosive, all of the following 9 conditions were satisfied: 10 (a) the plastic explosive contained a detection agent; 11 (b) the concentration of the detection agent in the plastic 12 explosive was not less than the minimum manufacture 13 concentration for the detection agent; 14 (c) the detection agent was homogenously distributed throughout 15 the plastic explosive. 16 Note: For minimum manufacture concentration, see section 72.34. 17 Freshness 18 (3) The second marking requirement is that less than 10 years have 19 elapsed since the manufacture of the plastic explosive. 20 Interpretation 21 (4) In determining whether a plastic explosive manufactured before the 22 commencement of this section breached the first marking 23 requirement, assume that this section and sections 72.34 and 72.36 24 had been in force at the time of manufacture. 25 72.34 Detection agents and minimum manufacture concentrations 26 For the purposes of this Subdivision, the following table defines: 27 (a) detection agent; and 28 (b) the minimum manufacture concentration for each detection 29 agent. 30 31 16 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 [Page Break] Detection agents and minimum manufacture concentrations Item Detection agent Minimum manufacture concentration 1 Ethylene glycol dinitrate (EGDN) 0.2% by mass (molecular formula: C2H4(NO3)2) (molecular weight: 152) 2 2,3-Dimethyl-2,3-dinitrobutane (DMNB) 1% by mass (molecular formula: C6H12(NO2)2) (molecular weight: 176) 3 para-Mononitrotoluene (p-MNT) 0.5% by mass (molecular formula: C7H7NO2) (molecular weight: 137) 4 a substance prescribed for the purposes the concentration prescribed for of this table item the purposes of this table item in relation to the substance 72.35 Presumption as to concentration of detection agent 1 (1) This section applies in relation to a prosecution for an offence 2 against this Subdivision. 3 (2) If no detection agent can be detected in a sample of a plastic 4 explosive when tested using: 5 (a) a method generally accepted in the scientific community as a 6 reliable means of measuring the concentration of detection 7 agents in plastic explosives; or 8 (b) a method prescribed for the purposes of this paragraph; 9 it is presumed, unless the contrary is proved, that the plastic 10 explosive breaches the first marking requirement. 11 Note: A defendant bears a legal burden in relation to proving the contrary 12 (see section 13.4). 13 72.36 Definitions 14 In this Subdivision: 15 Convention on the Marking of Plastic Explosives means: 16 (a) the Convention on the Marking of Plastic Explosives for the 17 Purpose of Detection, done at Montreal on 1 March 1991; or 18 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 17 [Page Break] (b) if: 1 (i) the Convention is amended; and 2 (ii) the amendment binds Australia; 3 the Convention as so amended. 4 Note: In 2006, the text of the Convention was accessible through the 5 Australian Treaties Library on the AustLII Internet site 6 (www.austlii.edu.au). 7 Department of Defence means the Department that deals with 8 matters relating to defence. 9 detection agent has the meaning given by section 72.34. 10 explosive device includes the following: 11 (a) a bomb; 12 (b) a grenade; 13 (c) a mine; 14 (d) a missile; 15 (e) a perforator; 16 (f) a projectile; 17 (g) a rocket; 18 (h) a shaped charge; 19 (i) a shell. 20 export includes take from Australia. 21 first marking requirement has the meaning given by subsection 22 72.33(2). 23 high explosive means an explosive with a velocity of detonation 24 that is greater than the velocity of sound in the explosive (typically 25 greater than 340 metres per second), and includes the following: 26 (a) cyclotetramethylenetetranitramine (HMX); 27 (b) pentaerythritol tetranitrate (PETN); 28 (c) cyclotrimethylenetrinitramine (RDX). 29 import includes bring into Australia. 30 manufacture a substance means any process by which a substance 31 is produced, and includes the following: 32 (a) the process of transforming a substance into a different 33 substance; 34 18 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 [Page Break] (b) the reprocessing of a substance. 1 marking requirement has the meaning given by section 72.33. 2 minimum manufacture concentration has the meaning given by 3 section 72.34. 4 Minister for Defence means the Minister administering the 5 Defence Act 1903. 6 plastic explosive means an explosive product (including an 7 explosive product in flexible or elastic sheet form) that is: 8 (a) formulated with: 9 (i) one or more high explosives which in their pure form 10 have a vapour pressure less than 10¯ 4 Pa at a 11 temperature of 25°C; and 12 (ii) a binder material; and 13 (b) as a mixture, malleable or flexible at normal room 14 temperature. 15 possess a substance includes the following: 16 (a) receive or obtain possession of the substance; 17 (b) have control over the disposition of the substance (whether or 18 not the substance is in the custody of the person); 19 (c) have joint possession of the substance. 20 responsible Minister means: 21 (a) the Minister; or 22 (b) the Minister for Defence. 23 second marking requirement has the meaning given by subsection 24 72.33(3). 25 traffic in a substance means: 26 (a) transfer the substance; or 27 (b) offer the substance for sale; or 28 (c) invite the making of offers to buy the substance; or 29 (d) prepare the substance for transfer with the intention of 30 transferring any of it or believing that another person intends 31 to transfer any of it; or 32 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 19 [Page Break] (e) transport or deliver the substance with the intention of 1 transferring any of it or believing that another person intends 2 to transfer any of it; or 3 (f) guard or conceal the substance with the intention of 4 transferring any of it or the intention of assisting another 5 person to transfer any of it; or 6 (g) possess the substance with the intention of transferring any of 7 it. 8 For the purposes of paragraph (d), preparing a substance for 9 transfer includes packaging the substance or separating the 10 substance into discrete units. 11 transfer means transfer ownership or possession. 12 unmarked plastic explosive means a plastic explosive that 13 breaches a marking requirement. 14 wrapper, in relation to a plastic explosive, means a wrapper the 15 inner surface of which is in contact with the plastic explosive. 16 20 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 [Page Break] 1 Schedule 2--Amendment of the Customs Act 2 1901 3 4 1 Subsection 4(1) 5 Insert: 6 unmarked plastic explosive has the same meaning as in 7 Subdivision B of Division 72 of the Criminal Code. 8 2 Section 4B (after paragraph (b) of the definition of 9 Customs-related law) 10 Insert: 11 (baa) section 72.13 of the Criminal Code; or 12 3 Subsection 183UA(1) (paragraph (c) of the definition of 13 offence) 14 Before "Division 307", insert "section 72.13 or". 15 4 After subsection 183UA(2) 16 Insert: 17 (2AA) For the purposes of this Part, an offence against section 6 of the 18 Crimes Act 1914 that relates to an offence against section 72.13 of 19 the Criminal Code is taken to be an offence against section 72.13 20 of the Criminal Code. 21 5 After paragraph 183UA(3)(a) 22 Insert: 23 (aa) an offence against section 141.1, 142.1, 142.2 or 149.1 of the 24 Criminal Code that relates to section 72.13 of the Criminal 25 Code is taken to be an offence against section 72.13 of the 26 Criminal Code; and 27 6 Subparagraphs 184A(2)(c)(i) and (ii) 28 Before "Division 307", insert "section 72.13 or". 29 7 Subparagraph 184A(4)(c)(ii) 30 Before "Division 307", insert "section 72.13 or". 31 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 21 [Page Break] 8 Paragraph 184A(5)(c) 1 Before "Division 307", insert "section 72.13 or". 2 9 Paragraph 184D(3)(b) 3 Before "Division 307", insert "section 72.13 or". 4 10 Subparagraph 185(2)(c)(iii) 5 Before "Division 307", insert "section 72.13 or". 6 11 Subparagraph 185(2)(d)(i) 7 Before "Division 307", insert "section 72.13 or". 8 12 Sub-subparagraph 185(2)(d)(ii)(A) 9 Before "Division 307", insert "section 72.13 or". 10 13 Subparagraph 185(2)(d)(iii) 11 Before "Division 307", insert "section 72.13 or". 12 14 Paragraph 185(3)(a) 13 Before "Division 307", insert "section 72.13 or". 14 15 Subparagraph 185(3)(c)(i) 15 Before "Division 307", insert "section 72.13 or". 16 16 Paragraph 185(3)(d) 17 Before "Division 307", insert "section 72.13 or". 18 17 Subsection 185B(1) 19 Before "Division 307", insert "section 72.13 or". 20 18 Paragraph 185B(2)(b) 21 Before "Division 307", insert "section 72.13 or". 22 19 Subparagraph 185B(2)(c)(i) 23 Before "Division 307", insert "section 72.13 or". 24 20 Paragraph 210(1)(c) 25 Before "Division 307", insert "section 72.13 or". 26 22 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 [Page Break] 21 Section 227AA 1 Before "To avoid", insert "(1)". 2 22 At the end of section 227AA 3 Add: 4 (2) To avoid doubt, if, when exercising powers under this Act, an 5 officer obtains evidence of the commission of an offence against 6 Subdivision B of Division 72 of the Criminal Code, then that 7 evidence may be used, or given to another body for use, in: 8 (a) investigating the offence; or 9 (b) proceedings for the prosecution for the offence. 10 23 After subsection 231(2) 11 Insert: 12 (2A) This section does not apply to, or in relation to, unmarked plastic 13 explosives. 14 Note: Section 72.13 of the Criminal Code creates an offence of importing or 15 exporting unmarked plastic explosives. 16 24 After subsection 233A(1A) 17 Insert: 18 (1B) Subsection (1) does not apply if the goods smuggled, imported, 19 exported or conveyed are unmarked plastic explosives. 20 Note: Section 72.13 of the Criminal Code creates an offence of importing or 21 exporting unmarked plastic explosives. 22 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 23 [Page Break] 1 Schedule 3--Consequential amendments 2 3 Australian Federal Police Act 1979 4 1 Subsection 4(1) (paragraph (c) of the definition of 5 protective service offence) 6 Before "Division 72", insert "Subdivision A of". 7 Australian Security Intelligence Organisation Act 1979 8 2 Section 4 (definition of terrorism offence) 9 Repeal the definition, substitute: 10 terrorism offence means: 11 (a) an offence against Subdivision A of Division 72 of the 12 Criminal Code; or 13 (b) an offence against Part 5.3 of the Criminal Code. 14 Note: A person can commit a terrorism offence against Part 5.3 of the 15 Criminal Code even if no terrorist act (as defined in that Part) occurs. 16 Crimes Act 1914 17 3 Subsection 3(1) (paragraph (a) of the definition of terrorism 18 offence) 19 Before "Division 72", insert "Subdivision A of". 20 4 Paragraph 15YU(1)(d) 21 Before "Division 72", insert "Subdivision A of". 22 Foreign Evidence Act 1994 23 5 Subsection 3(1) (paragraph (d) of the definition of 24 designated offence) 25 Before "Division 72", insert "Subdivision A of". 26 Surveillance Devices Act 2004 27 24 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 [Page Break] 6 Subparagraph 30(1)(a)(viii) 1 Omit "Division 72", substitute "Subdivision A of Division 72 or 2 Division". 3 Telecommunications (Interception) Act 1979 4 7 Paragraph 5D(1)(e) 5 Repeal the paragraph, substitute: 6 (e) an offence against: 7 (i) Subdivision A of Division 72 of the Criminal Code; or 8 (ii) Division 101 of the Criminal Code; or 9 (iii) Division 102 of the Criminal Code; or 10 (iv) Division 103 of the Criminal Code; or 11 Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 No. , 2006 25